John Whitfield, appellant, v. Wilson Sigua Vizhco, et al., respondents. (2026)

Argued—February 3, 2026

DECISION & ORDER

O/

In an action, inter alia, to recover damages for fraud, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated December 13, 2022, and (2) an order of the same court dated December 19, 2022.  The order dated December 13, 2022, insofar as appealed from, granted that branch of the motion of the defendants Wilson Sigua Vizhco and Angel Siguacriollo which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging unjust enrichment insofar as asserted against them and denied the plaintiff's cross-motion pursuant to CPLR 3211(b) to dismiss those defendants' affirmative defenses and pursuant to CPLR 3042 to compel those defendants to serve a bill of particulars.  The order dated December 19, 2022, insofar as appealed from, granted those branches of the motion of the defendant Kevin H which were pursuant to CPLR 3211(a) to dismiss the causes of action alleging prima facie tort, ordinary negligence, and gross negligence insofar as asserted against him.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

In March 2022, the plaintiff commenced this action against the defendants Wilson Sigua Vizhco and Angel Siguacriollo, the defendant Kevin H (hereinafter Harmacoond), who was a claims adjuster for GEICO Insurance Company (hereinafter GEICO), and another defendant.  The plaintiff alleged, inter alia, that in March 2021, he was involved in a car accident with a car operated by Vizhco (hereinafter the subject car), which was registered to Siguacriollo and insured by GEICO.  The plaintiff further alleged that Vizhco and Siguacriollo committed insurance fraud by, among other things, claiming that certain preexisting damage to the subject car was caused by the March 2021 accident, which allegedly caused the plaintiff's insurance carrier to pay GEICO and increase the plaintiff's car insurance premiums.  In May 2022, Vizhco and Siguacriollo moved, inter alia, pursuant to CPLR 3211(a) to dismiss the cause of action alleging unjust enrichment insofar as asserted against them.  The plaintiff opposed the motion and cross-moved pursuant to CPLR 3211(b) to dismiss Vizhco's and Siguacriollo's affirmative defenses and pursuant to CPLR 3042 to compel those defendants to serve a bill of particulars.  In an order dated December 13, 2022, the Supreme Court, among other things, granted that branch of Vizhco's and Siguacriollo's motion and denied the plaintiff's cross-motion.  The plaintiff appeals.

In May 2022, Harmacoond moved, inter alia, pursuant to CPLR 3211(a) to dismiss the causes of action alleging prima facie tort, ordinary negligence, and gross negligence insofar as asserted against him.  The plaintiff opposed the motion.  In an order dated December 19, 2022, the Supreme Court, among other things, granted that branch of Harmacoond's motion on the ground that the plaintiff failed to allege that Harmacoond acted outside the scope of his employment in a way that would expose him to personal liability.  The plaintiff appeals.

“In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), ‘the complaint must be accorded a liberal construction, the facts as alleged therein must be accepted as true, and the plaintiff must be accorded the benefit of every favorable inference’ ” (Rigwan v. Neus, 205 AD3d 1062, 1063, quoting Elow v. Svenningsen, 58 AD3d 674, 674;  see New Hackensack Realty, LLC v Lawrence Dev. Realty, LLC, 226 AD3d 799, 800–801).  “The ‘sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail’ ” (Rigwan v. Neus, 205 AD3d at 1063, quoting Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275).  However, “ ‘allegations consisting of bare legal conclusions ․ are not entitled to any such consideration’ ” (Abbas v. Richmond Univ. Med. Ctr., 229 AD3d 743, 744, quoting Simkin v. Blank, 19 NY3d 46, 52;  see Mackey v Lawrence Union Free Sch. Dist., 225 AD3d 683, 685).  “ ‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery’ ” (Barbetta v. NBCUniversal Media, LLC, 227 AD3d 763, 765–766, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142;  see Kefalas v. Pappas, 226 AD3d 757, 759).

“The elements of a cause of action to recover for unjust enrichment are ‘(1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered’ ” (GFRE, Inc. v. U.S. Bank, N.A., 130 AD3d 569, 570, quoting Mobarak v. Mowad, 117 AD3d 998, 1001;  see Nasca v. Greene, 216 AD3d 648, 650).  “ ‘Although privity is not required for an unjust enrichment claim, a claim will not be supported if the connection between the parties is too attenuated’ ” (Bedford–Carp Constr., Inc. v. Brooklyn Union Gas Co., 219 AD3d 1293, 1295, quoting Mandarin Trading Ltd. v. Wildenstein, 16 NY3d 173, 182).  “The essence of such a cause of action is that one party is in possession of money or property that rightly belongs to another” (Clifford R. Gray, Inc. v LeChase Constr.  Servs., LLC, 31 AD3d 983, 988;  see Maple Med., LLP v. Scott, 191 AD3d 81, 99).  Here, the plaintiff has not pleaded facts sufficient to demonstrate that Vizhco and Siguacriollo were unjustly enriched at the plaintiff's expense (see Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 516;  Rosenfeld v. Brody, 238 AD3d 1084, 1087;  First Am. Tit. Ins. Co. v. Holohan, 189 AD3d 1180, 1183).  Accordingly, the Supreme Court properly granted that branch of Vizhco's and Siguacriollo's motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging unjust enrichment insofar as asserted against them.

Further, the Supreme Court properly granted those branches of Harmacoond's motion which were to dismiss the causes of action alleging prima facie tort, ordinary negligence, and gross negligence insofar as asserted against him.  The complaint, inter alia, failed to allege sufficient facts that would support Harmacoond's personal liability to the plaintiff (see O'Keefe v. Allstate Ins. Co., 90 AD3d 725, 726;  Ryan v. Preferred Mut. Ins. Co., 38 AD3d 1148, 1149).

The parties' remaining contentions either are improperly raised for the first time on appeal or need not be addressed in light of our determination.

CONNOLLY, J.P., CHRISTOPHER, VENTURA and GOLIA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court